Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22686/93

by Walter STÜRM

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 August 1993 by

Walter Stürm against Switzerland and registered on 28 September 1993

under file No. 22686/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 June 1994 and the observations in reply submitted by the

applicant on 12 July 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant, a Swiss citizen born in 1942, is currently

detained at Brig prison in Switzerland.

Criminal proceedings were instituted against the applicant on

account of theft and robbery. Since 1990 he has been detained on

remand in various prisons in Switzerland. In separate criminal

proceedings the Criminal Court (Strafgericht) of the Canton of Jura

sentenced him to 12 years' imprisonment on 30 November 1992.

The present application concerns the applicant's correspondence

while in detention. The application does not directly relate to

Applications Nos. 20231/92, 20545/92, 23117/93 and 23223/93, currently

pending before the Commission.

I.

In 1992 the applicant went on a hunger strike whereupon he was

temporarily detained in a security cell at a Geneva hospital. A radio

reporter of Radio DRS, the national radio station for German and

Romansch Switzerland (Radio der deutschen und der rätoromanischen

Schweiz) sent a letter to him with twelve questions and a cassette for

a tape-recorder. The reporter explained that he had been refused

permission to interview the applicant personally for which reason he

requested him to reply to the questions on tape; the answers would be

used for a radio interview.

On 29 July 1992 P., the investigating judge of the Ering/Gundis

Districts at Sion/Sitten in the Canton of Valais decided to withhold

the cassette, while forwarding the letter and the questions.

The applicant replied to the questions in a letter to the radio

reporter which the investigating judge passed on. The applicant

further filed a complaint with the Cantonal Court of the Canton of

Valais that he had not received the cassette.

II.

On 24 July 1992 the applicant sent a letter to the editor of the

Zurich weekly newspaper W. in which he stated, with reference to the

investigating judge, that "if the nilper (sic) in Sitten considers that

with these mean tricks he can get me to give in, he is out of his mind,

but that he is in any case" ("wenn der Nilper in Sitten denkt,

er könne mich durch derartige Schikanen klein kriegen, dann ist der

falsch gewickelt, aber das ist er ja auf jeden Fall"). The letter also

stated inter alia that P. had "pinched" ("geklaut") the annex of

another letter.

On 31 July 1992 the investigating judge informed the applicant

that he would not forward the letter on account of the indecent and

defamatory statements therein. The applicant appealed against this

decision to the Cantonal Court of the Canton of Valais.

III.

On 27 July 1992 the applicant wrote to Ms. S. of Amnesty

International, complaining inter alia of the conditions of detention

on remand. The letter stated inter alia that "for me, persons like the

investigating judge P. are therefore nothing else than desk murderers

who only differ from an Adolf Eichmann in the number of their victims"

("Für mich sind deshalb Leute wie der Untersuchungsrichter P. nichts

anderes als Schreibtischmörder, die sich von einem Adolf Eichmann nur

durch die Anzahl der Opfer unterscheiden").

The letter continued that "my stay in this torture hole only

lasted a few weeks which nevertheless sufficed to understand that the

pig was not M. which wrongly incriminated me"

("dauerte mein Aufenthalt in diesem Folterloch nur einige Wochen, die

aber genügten, um zu begreifen, dass das Schwein nicht der mich

fälschlicherweise belastende M. war"). The applicant further wrote

that he had complained about the decision of the investigating judge

who, rather than forwarding a letter of the applicant, had put it in

the waste paper basket.

The investigating judge withheld this letter on 31 July 1992 as

it contained indecent and defamatory remarks.

IV.

On 2 October 1992 the Cantonal Court dismissed the applicant's

appeals against the various decisions of the investigating judge; fined

him 80 SFr for filing an abusive appeal; and ordered him to pay costs

of the proceedings and the decision amounting to 74.60 SFr. The Court

found inter alia that the investigating judge had correctly withheld

the radio cassette in order to maintain order in prison and not to

jeopardise the purpose of detention. The applicant had always been

keen on publicity. Moreover, there was a danger that the radio station

would manipulate the cassette in such a way as to give a one-sided view

of the case.

V.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) against this decision which the Federal Court (Bundesge-

richt) dismissed on 24 February 1993.

Insofar as the applicant complained that the Valais authorities

had breached his right to correspondence and to freedom of expression

the Court found that the decisions of the investigating judge not to

forward the letters interfered with his right under Article 8 of the

Convention to freedom of correspondence, and the decision to hold back

the cassette interfered with his right under Article 10 of the

Convention.

The Court noted that these interferences had been based on

Section 73 para. 1 of the Regulations on Prison Establishments of the

Canton of Valais (Reglement über die Strafanstalten des Kantons Wallis)

according to which correspondence between a prisoner on remand and the

outside world had to be submitted to the control of the investigating

judge; in the Court's opinion there was therefore a sufficient legal

basis for the interferences. Under Article 8 para. 2 of the

Convention the Court then distinguished the contents of the various

letters. In respect of the letter to Ms. S. (see above III.) the Court

found that the words "desk murderer" and "differ from an Adolf Eichmann

in the number of their victims" constituted a grossly defamatory

statement (massiv ehrverletzende Äusserung). The Court considered that

if such a letter was not withheld, this would soon become known in the

prison, and other prisoners would be induced to write similar letters;

tensions would arise between prisoners and prison staff and the order

in prison would be jeopardised. The right to correspondence of a

prisoner on remand was limited by the personal honour of the civil

servant dealing with the criminal case. The Court considered that it

would have been preferable if the investigating judge had either

blackened the words or given the letter back to the applicant to change

the statements. However, in such matters the authorities enjoyed a

margin of appreciation and the investigating judge had not proceeded

in a disproportionate manner.

The Federal Court then dealt with the applicant's letter to the

W. newspaper (see above II.). In the Court's view, it was unclear what

the word "nilper" meant, and the letter could not be held back for this

reason. Similarly, if it was stated that the investigating judge had

"pinched" his letter, it could be assumed that the applicant was in

fact complaining that the letter had disappeared and not that the

investigating judge had committed theft. As a result, this letter

contained no grossly defamatory remarks, and in this respect the

Federal Court upheld the applicant's public law appeal.

The Court also dealt with the radio reporter's cassette (see

above I.). It noted that the applicant had been able to reply to the

questions put to him by the radio reporter in a letter, for which

reason the interference at issue was only minor (geringfügig); on the

other hand, the interference was not inconsiderable (nicht unbedeutend)

as the applicant had at that time been in a security cell in hospital

and had himself stated that it would have been easier for him to reply

orally to the questions. Moreover, it was not clear why only oral

statements and not also letters could lead to a one-sided view of the

case, as stated by the Cantonal Court. Finally, it could be expected

from Radio DRS that it would present its transmissions on the applicant

in an objective manner. As a result, the Court considered that it had

not been necessary in a democratic society within the meaning of

Article 10 para. 2 of the Convention to hold back the cassette, and in

this respect the Court also upheld the applicant's public law appeal.

Finally, the Court quashed the fine and the costs imposed on the

applicant by the Cantonal Court.

COMPLAINTS

The applicant complains under Articles 8 and 10 of the Convention

that the authorities did not forward a letter which he had written to

Ms. S. He alleges that the letter was personal. He submits that the

investigating judge should solely have examined the letter as to a

danger of collusion or of fleeing; in case of defamatory remarks he was

free to introduce a defamatory action against the applicant.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 August 1993 and registered

on 28 September 1993.

On 7 April 1994 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits in respect of the

complaint under Article 8 of the Convention.

The Government's observations were submitted on 17 June 1994, the

applicant's observations in reply on 12 July 1994.

THE LAW

The applicant complains under Article 8 (Art. 8) and also under

Article 10 (Art. 10) of the Convention that the Swiss authorities did

not forward a letter which he addressed to Ms. S. of Amnesty

International.

Article 8 (Art. 8) of the Convention provides, insofar as

relevant:

"1. Everyone has the right to respect for ... his

correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government submit that any interference with the applicant's

right to respect for his correspondence under Article 8 para. 1

(Art. 8-1) would be justified under Article 8 para. 2 (Art. 8-2).

Thus, the legal basis for the decision not to forward the letter was

Section 73 para. 1 of the Regulations on Prison Establishments of the

Canton of Valais. Moreover, retaining the letter served to prevent the

commission of the criminal offence of defamation. Had the applicant

been permitted to send letters with a defamatory content, other

prisoners would do the same and tensions with prison staff would arise.

The Government further recall that the letter was addressed to a person

working for Amnesty International, and that the applicant is well-known

in Switzerland. Finally, there was no general prohibition to forward

such letters; indeed, in its decision of 24 February 1993 the Federal

Court found that only one of three letters written by the applicant

should have been withheld.

The applicant contends that the investigating judge, when

deciding on 31 July 1992 not to forward the letter, did not mention any

legal basis, for which reason it cannot be said that the legal basis

was Section 73 para. 1 of the Regulations on Prison Establishments of

the Canton of Valais. He furthermore points out that in the letter at

issue he always wrote that "for me" P. was a pig and a desk murderer,

thus expressing his own opinion. The applicant also submits that it

was unnecessary to retain the letter, as he was held in solitary

confinement and had therefore no contact with other prisoners; thus,

forwarding the letter could not have endangered prison order. He also

points out that persons working for Amnesty International do not become

active in their home country.

The Commission finds that these complaints raise serious

questions of fact and law which are of such complexity that their

determination should depend on an examination of the merits. The case

cannot, therefore, be regarded as being manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and

no other ground for declaring it inadmissible has been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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STÜRM v. SWITZERLAND

STÜRM v. SWITZERLAND

LEXI